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United Kingdom Employment Appeal Tribunal
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Uzor v Safiu & Ors (Jurisdictional Points : Extension of time: reasonably practicable) [2012] UKEAT 1424_11_0712 (07 December 2012)
URL: http://www.bailii.org/uk/cases/UKEAT/2012/PA_1424_11_0712.html
Cite as:
[2012] UKEAT 1424_11_712,
[2012] UKEAT 1424_11_0712
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Appeal No. UKEATPA/1424/11/ZT
UKEATPA/1425/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
7 December 2012
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MR
G UZOR APPELLANT
(1) MS F A SAFIU
(2) MRS A UZOR
(3) VERRIOTT
INTERNATIONAL GROUP LTD FORMERLY VARIETY
GROUP LTD RESPONDENTS
MRS A UZOR APPELLANT
(1) MS F A SAFIU
(2)
MR G UZOR
(3) VERRIOTT
INTERNATIONAL GROUP LTD FORMERLY VARIETY
GROUP LTD RESPONDENTS
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
APPEARANCES
PA/1424/11/ZT
|
For Mr G Uzor
|
MR
A OTCHIE
(of Counsel)
Instructed by:
Equip Law
Tottenham Green Enterprise Centre
Town Hall Approach
Road
London
N15 4RX
|
PA/1425/11/ZT
|
For Mrs A Uzor
|
MISS E GODWINS-FALADE
(Representative)
Spiropoulos Lawal
Solicitors
367 Brockley Road
Brockley
London
SE4 2AG
|
SUMMARY
JURISDICTIONAL POINTS
Extension of time: reasonably practicable
Worker, employee or neither
There was no error in the Employment
Tribunal’s finding that a domestic servant was jointly employed on a contract
of employment by a husband and wife and liability for substantial compensation
was joint and several. The Employment Tribunal could not be faulted on its
assessment of what was reasonably practicable, and what is a reasonable time
for presenting non-discrimination claims.
HIS HONOUR JUDGE McMULLEN QC
Introduction
1.
The proceedings were constituted as a claim by the Claimant against what
she maintained were her employers Mr and Mrs Uzor, sued separately, and the
corporation Verriott International which appears to have gone into liquidation
or disappeared in some way. The Claimant made 16 claims against the
Respondents. She succeeded on 15 of these. She failed to show that there was
a public interest disclosure dismissal but she did show public interest
disclosure detriment and breaches of just about every part of the
anti-discrimination canon.
2.
The Claimant was represented by counsel. Mr Uzor, was represented by an
advocate and today by Mr Otchie of counsel. Mrs Uzor, was represented by Miss
Godwins-Falade, a legal consultant who appears today.
3.
The Judgment is 33 pages, sent with Reasons on 9 August 2011. The facts
of the case disclose very unsatisfactory treatment by the Uzors of the Claimant
throughout her period of engagement with them. The Tribunal found that she was
employed by both of the Respondents. Mrs Uzor takes no issue with that. Mr
Uzor, through Mr Otchie, says that he was not and that the Tribunal has failed
to address the correct tests for establishing an employment relationship.
4.
Mr Uzor secondly contends that liability should have been apportioned as
between the two of them. I am told very substantial compensation was awarded.
Many of the acts were done by Mrs Uzor and the Tribunal erred in imposing joint
and several liability on both of the Uzors. Thirdly, he contends that the
Tribunal was wrong to extend time for entering complaints in respect of three
statutory grounds; unauthorised deductions, minimum wage and an itemised pay
statement together with terms and conditions of employment. The last point is
also made on behalf of Mrs Uzor, however her main contention is that the
Tribunal was perverse in its finding of discrimination based upon its
assessment of the credibility of the parties.
Contentions and conclusions
5.
It is common ground now that the Claimant’s engagement ended on 16 July
2009 when her suitcase was put out of the door. She is from Benin, has little command of English and was vulnerable. The claim form was presented on 15 October
2009 by those acting for her at North Kensington Law Centre through a support
group called Kalayaan which helps migrant domestic staff. The first issue was to
determine who the employer was. No doubt arises about Mrs Uzor but as to Mr
Uzor the Tribunal examined the facts relating to his involvement in the
household. It was shown a document relating to separation; it heard the
accounts given by Mr Uzor and by the Claimant about his involvement in the
household.
6.
It criticised Mr Uzor for failing to call relevant evidence that might
have assisted him as to his living elsewhere. It found that he was the employer
with his wife for they together gave instructions about what to do, when to do
it and specific tasks directed particularly to care for Mr Uzor himself such as
washing his car and ironing his clothes, He also on occasion paid her.
7.
In my judgment the Tribunal reached a permissible conclusion on the
employment relationship. When this case was dealt with on paper the Appellate
Judge said that this case could go no further for he said the following:
“Employment
1. There was no need for any sophisticated analysis of the
various tests for the existence of a contract of employment. The Appellant does
not dispute that the Claimant was employed; whether by both Mr and Mrs Uzor or
only by Mrs Uzor was essentially a question of fact for the Employment
Tribunal.
2. This is not a case about mutuality; the issue is whether Mr
Uzor was also an employer. The Employment Tribunal set out at paragraph 53 the
tasks that the Claimant performed for him and on his instructions.
3. None of the grounds in the new Notice of Appeal against the
conclusion that the Appellant was employed by both Mr and Mrs Uzor have a
reasonable prospect of success.
Mr Uzor's Liability
It is not at all clear that it was argued that, if Mr Uzor was
an employer with his wife, he would not be liable for her acts. No such
submission appears in the Employment Tribunal's judgment. Assuming that it was
so argued, this is not a case of pure vicarious liability - as in JGE v
English Province of our Lady Charity - but of a husband and wife who were
employers together. In this area too there is no reasonable prospect of
success.
The Time Issue
The appeal as to time limits arises only in the case of the
failures to provide a contract of employment and pay slips and the making of
unauthorised deductions. As to those failures the time limit is 3 months from
termination. As to deductions, paragraph 54 of the judgment makes clear that
there was a continuing under-payment and S 23 (3) of the Employment Rights Act
1996 applies. In any event the Tribunal did not arguably err in law.”
8.
I respectfully agree. There is no error in the Tribunal’s classification
of the relationship between the Claimant and Mr Uzor as being one of
employment. It therefore followed that both he and his wife were jointly and
severally liable for the statutory torts committed in the course of that relationship
by either one of them and there was no need for any apportionment.
9.
In the circumstances, therefore, I see no error of law in the first two
grounds advanced by Mr Otchie. As to the material adduced in respect of
perversity by Ms Godwins-Falade, there is no legal error. Quite correctly on
the papers, Mr Recorder Luba QC sent the Appellants off to the Employment
Tribunal to raise new questions of fact, if that was what was necessary
following the practice statement of the President this year but that was
refused and in my judgment that is an end to it.
10.
The very few documents Miss Godwins-Falade has shown me do not indicate
the overwhelming case which is necessary in order to overturn the judgment on
the ground of perversity; see Yeboah v Crofton [2002] IRLR 634 CA.
11.
I then turn to the final ground which is as to the presentation of the
claim. The sole document Miss Godwins-Falade relies on is an email from the
Claimant of 10 August 2009 indicating that she has spoken to a solicitor which
I infer is North Kensington Law Centre and that the claim was not presented
until 15 October.
12.
As I understand it the award includes payment in respect of unauthorised
deductions throughout the whole of the life of this contract of employment.
There is, therefore, a kind of continuing act in respect of those but that is
not a ground of appeal and I set that on one side. There is no ground of
appeal against the finding that the discrimination cases were continuing acts
and therefore ended on 16 July 2009. The claim was therefore presented within
time.
13.
The self contained individual acts, if this is the correct analysis of
them, were all out of time some time in 2008. The question in these specific (non-discrimination)
jurisdictions is whether it was reasonably practicable for her to present the
claims within that time. The Tribunal found that it was not reasonable
practicable and on the basis proceeded to conduct the exercise in discretion.
There is no error of law in the finding that it was not reasonably practicable
because of the particular circumstances of the Claimant being described as:
“74. Claimant is new to this country. She was vulnerable, did
not have any friends or relations in the UK to whom she could have turned for
advice and assistance. She has a low intellectual level and did not know about
her rights in this country in relation to itemised pay statements, terms and
conditions of employment, unauthorised deductions from wages, and the
provisions of the Working Time Regulations. She worked long hours for the
respondents and did not have regular rest breaks. It was difficult for her to
leave the home to find out where she could obtain legal advice and assistance.
Applying the judgment in the case of Palmer v Saunders-on-Sea, we
conclude that it was not reasonably practicable for the claimant to have
pursued those complaints within three months from their effective dates. It
was reasonably practicable for her to seek legal advice, for all relevant
information to be obtained prior to presenting her claim form to this
tribunal. It was, in the circumstances, presented within a reasonable time.
Accordingly, we extend time in respect of the complaints.”
14.
The real focus of the attack by the advocates before me today is upon
the decision by the Tribunal to extend time. The moment that it does become
practicable, this is when the Claimant sought advice from the law centre in
August 2009, the claim should be presented within a reasonable period
thereafter; we are dealing here with the period from about 10 August to 15
October 2009.
15.
The assessment of what is reasonable is one of discretion, it obviously
has to have an objective consideration in it. The Tribunal has set out of the
reasons for considering that this period from August to October was not an unreasonable
period of time for her to wait because she had to collect information in order
to seek advice and for all relevant information to be obtained prior to
presenting the claim. The Tribunal found that a grievance was lodged on 2
October and a questionnaire on 13 October which indicates that the Tribunal had
in mind the collection of data properly and assiduously done by the solicitors
following no doubt the taking of detailed instructions from the Claimant.
16.
No question of law arises as to whether this period in the circumstances
could be said to be wholly unreasonable. In my judgment it was open to the
Tribunal to accept the Uzors’ contention as to these three or four statutory
grounds being out of time. The Tribunal cannot be impugned for having accepted
the Claimant’s argument.
17.
In those circumstances, the two appeals will be taken no further and
they are effectively dismissed.
